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December 14, 2009

New York Times (irresponsibly?) contends "There Is No ‘Humane’ Execution"

"There Is No ‘Humane’ Execution" is the headline of this new New York Times editorial, which highlights yet again that those inclined to complain most loudly about various methods of execution are really fundamentally troubled by the entire business of capital punishment.  Here are snippets from what strikes me as a somewhat irresponsible editorial:

This is what passes for progress in the application of the death penalty: Kenneth Biros, a convicted murderer, was put to death in Ohio last week with one drug, instead of the more common three-drug cocktail....

Ohio adopted the single-drug formula after the botched execution.  It may well be an improvement over the three-drug cocktail, or may not.  (Death penalty advocates who hailed it as less painful have no way, obviously, of knowing that.)  But the execution only reinforced that any form of capital punishment is legally suspect and morally wrong.

Justice Ruth Bader Ginsburg noted, in a dissenting opinion in a death penalty case last year, that critics have charged that the three-drug cocktail poses a serious risk that the inmate will suffer severely.  The one-drug method was not used before last week on human beings, and Ohio should not have used it without a more public airing of its strengths and weaknesses, with input from medical and legal authorities.

The larger problem, however, is that changing a lethal-injection method is simply an attempt, as Justice Harry Blackmun put it, to “tinker with the machinery of death.”  No matter how it is done, for the state to put someone to death is inherently barbaric.

It has also become clear — particularly since DNA evidence has become more common — how unreliable the system is. Since 1973, 139 people have been released from death row because of evidence that they were innocent, according to the Death Penalty Information Center. 

An untold number of innocent people have also, quite likely, been put to death.  Earlier this year, a fire expert hired by the state of Texas issued a report that cast tremendous doubt on whether a fatal fire — for which Cameron Todd Willingham was executed in 2004 — was arson at all.  Until his execution, Mr. Willingham protested his innocence.

Most states still have capital punishment, and the Obama administration has so far shown a troubling commitment to it, pursuing federal capital cases even in states that do not themselves have the death penalty.

Earlier this year, New Mexico repealed its death penalty, joining 14 other states — and the District of Columbia — that do not allow it.  That is the way to eliminate the inevitable problems with executions.

I describe this editorial as "somewhat irresponsible" principally because of the phrases I have emphasized above.  The piece suggests only "death penalty advocates" hailed Ohio's new one-drug protocol as a less painful alternative without mentioning that defense-attorney critics of the three-drug approach often urged a one-drug approach.  Similarly, the piece suggests Ohio should have had a "a more public airing of its strengths and weaknesses, with input from medical and legal authorities" without mentioning that Ohio did reach out to numerous medical and legal authorities when developing its new protocol.  Finally, as serious students of the death penalty know, the Willingham case is the closest we've gotten to a clear showing an innocent person may have been executed; to suggest that a large number of innocent people have quite likely been put to death is especially misguided.

I understand and have great respect for anyone and everyone eager to make the categorical moral assertion that "for the state to put someone to death is inherently barbaric."  But it is especially important for those making such a claim to avoid seeking to bolster their arguments with specious facts and suspect suggestions.  This editorial has certainly lowered my opinion of the Old Gray Lady a bit.

Some recent related posts about Ohio's new execution method:

December 14, 2009 at 04:30 PM | Permalink

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Comments

"Finally, as serious students of the death penalty know, the Willingham case is the closest we have gotten to a case in which an innocent person has been executed; to suggest a large number of innocent people have likely been put to death is especially misguided."

Actually, serious students of the death penalty will know that there are many others who's guilt was never certain and which today is challenged. Indeed, even the word "guilt" has no definitive meaning across the US since in some states, mere presence at the scene of a murder is sufficient for execution. What you meant to say, I'm sure, is that the Willingham case has come the nearest to forcing a Governor to publicly accept that an innocent man was executed. Most cases have not retained or tested the definitive evidence that can get that far. That doesn't make them less real or less likely to have been wrongful executions.

Posted by: peter | Dec 14, 2009 4:50:30 PM

"Finally, as serious students of the death penalty know, the Willingham case is the closest we've gotten to a clear showing an innocent person may have been executed"

Click Here

Posted by: JC | Dec 14, 2009 4:50:51 PM

"This editorial has certainly lowered my opinion of the Old Gray Lady a bit."

My opinion hasn't been lowered, but only because it couldn't get any lower to start with.

The NYT has become a so completely ideological that it's no longer worth reading -- a conclusion apparently reached by quite a few others, since their readership is in sharp decline. It's gotten so bad they had to lay off staff and mortgage the building. At this rate, the Old Gray Lady is about to become like a Chicago voter, i.e., dead.

Posted by: Bill Otis | Dec 14, 2009 5:43:35 PM

"...since in some states, mere presence at the scene of a murder is sufficient for execution."

Peter, please cite a statute in any state that says merely being present at a murder scene is a capital offense.

Even if such a statute existed, the Enmund v. Florida rule would prevent its implementation.

Posted by: Kent Scheidegger | Dec 14, 2009 5:46:32 PM

I dont think, absent facts that would satisfy the scienter requirement for murder, that mere presence at the scene of a murder is enough to get anyone convicted of murder, let alone sentenced to death.

Posted by: federalist | Dec 14, 2009 5:49:22 PM

Kent and federalist --

I predict that peter's answer will be that, while there is no such statute, that's the way the system actually works,because...........drumroll................THE UNITED STATES IS A SICK EVIL RACIST COUNTRY THAT EXECUTES INNOCENT PEOPLE JUST FOR THE BARBARIC FUN OF IT. This is helped along by the combination of drunken/sleeping/lazy defense lawyers, cheating cops, amoral prosecutors, ambitious judges and moronic/bloodlusting juries that populate one case after the next.

After a while, there's nothing new under the abolitionist sun.

Posted by: Bill Otis | Dec 14, 2009 6:02:30 PM

I suspect Peter meant to refer to circumstances like those in Tison v. Arizona, 481 U.S. 137 (1987)

Posted by: JC | Dec 14, 2009 6:13:46 PM

JC, what Peter said does not bear even the most remote resemblance to Tison. The Tison brothers' participation in that crime was vastly greater than mere presence.

Posted by: Kent Scheidegger | Dec 14, 2009 6:36:14 PM

I didn't say I agreed with him.

Posted by: JC | Dec 14, 2009 6:43:56 PM

JC --

No, you didn't say in so many words that the Tison case was an example of mere presence, but you implied it.

Still, I'm glad you brought up Tison, since it's an apt example of just how utterly cold and heartless multiple killers can be. It's also a good example of the fact that they think about what they're doing. Tison is a straight-up example of witness elimination. They had already stolen everything of value. The only reason for murdering the whole family was to leave no witnesses.

A real bunch of nice guys, wouldn't you say?

If Tison is the best the abolitionist side can do to "illustrate" the "injustice" of the DP, no wonder it's losing the public debate so decisively.

Posted by: Bill Otis | Dec 14, 2009 9:00:22 PM

To all lawyers using the rate of false conviction as an argument to suspend all executions, including all governors and governor candidates.

I expect you to stop riding cars, bicycles, trains, and airplanes until the problem of fatal crashes has been solved. There are a 1000 innocent people who die in transportation mishape for every serial killed, little girl throat slitter.

Also, I expect to all stop smoking until a guaranteed cigarette is made, with 10,000 people killed by cigarettes for every gangbanger put to death.

If you need a drink, forget that. That kills 2500 innocent people for every execution.

Posted by: Supremacy Claus | Dec 14, 2009 10:24:40 PM

"No, you didn't say in so many words that the Tison case was an example of mere presence, but you implied it."

I didn't intend to, although I will readily concede that my post could easily be read that way. I assumed Peter was referring to multi-defendant felony murder cases like Tison, where somebody who never intended for a murder to take place is nevertheless on the hook for the death penalty. I don't think Peter meant that if I'm shopping at the grocery store and some jackass I've never even met comes in and murders the cashier while robbing the place, that I would then be eligible for the death penalty because I was "merely present" when the murder took place.

"A real bunch of nice guys, wouldn't you say?"

The facts of Tison are abhorrent. No one in their right mind would dispute that.

Posted by: JC | Dec 14, 2009 10:31:02 PM

JC --

Fair enough. Thank you. Reading a case like Tison can actually make you ill. The randomness, cruelty and stone-cold calculation of it is staggering. It certainly reminded me of why the DP is the only just answer for some killers.

Posted by: Bill Otis | Dec 15, 2009 3:47:49 AM

"in some states, mere presence at the scene of a murder is sufficient for execution."

Since 1982, the U.S. Supreme Court has barred the death penalty for co-conspirators who don’t kill. The justices made an exception in 1987, however, ruling that the Eighth Amendment didn’t prohibit the execution of someone who plays a major role in a felony that results in murder and whose mental state is one of reckless indifference. Texas, which State I know most about, persistently abuses this ruling under its Law of Parties legislation. The concern in many quarters in Texas is causing close scrutiny of this law, which came close this year to revision if not repeal - but the move was finally rejected by the Texas Senate Committee. Approximately 80 inmates have not murdered anyone, and Texas is sure of this. Kenneth Foster was a notable beneficiary of a very rare and last minute clemency grant having been convicted and sentenced under the Law of Parties.

Posted by: peter | Dec 15, 2009 4:04:27 AM

Bill - "while there is no such statute, that's the way the system actually works, because ..."
So far, absolutely right .... but then you resort to the defamatory. I'm clearly getting under your skin :). Being as it's nearly Christmas, I'd recommend a glass of Scotch and a mince pie - and contemplate the wreck of humanity that the death penalty leaves in its wake across the families and friends of both victims and the accused (guilty or innocent). Nothing justifies it. As you rightly said on an earlier thread, the world won't come to an end if we have no DP, as was more than adequately shown by the recent de facto moratorium. Your recent words scream "revenge" - not a healthy obsession at Christmas or any other time.

Posted by: peter | Dec 15, 2009 4:50:12 AM

Doug:

It is unfortunate you didn't highlight

"Since 1973, 139 people have been released from death row because of evidence that they were innocent, according to the Death Penalty Information Center."

It is a blatant and bold deception which has been around for a decade (with various numbers).

The New YorK Times knows it's false, see below, as does all the anti death penalty leadership, all pro death penalty experts and many others, yet the media replays this broken record over and over again, because they like the sound (and dishonest) impact of it.

I am surprised you gave it a free ride

The Death of Innocents: A Reasonable Doubt,
New York Times Book Review, p 29, 1/23/05, Adam Liptak,
national legal correspondent for The NY Times

"To be sure, 30 or 40 categorically innocent people have been released from death row . . . ".

That is out of the DPIC claimed 119 "exonerated", at that time, for a 75% error rate.

NOTE: It's hard to understand how an absolute can have a differential of 33%. I suggest the "to be sure" is, now, closer to 25. I find the error rate in these claims closer to 83%, based upon a series of reviews.

Posted by: Dudley Sharp | Dec 15, 2009 6:38:49 AM

I am one of those who are "really fundamentally troubled by the entire business of capital punishment."
You hit the nail on the head. Capital punishment is a "business". Freud slip?

What part of "Thou Shalt Not Kill" does thou not get? When you can answer that one without disapproving of the Commandment then I would like to hear the answer.

Posted by: mpb | Dec 15, 2009 6:50:42 AM

The current reality of the Willingham case is not what has been described.

Here is the current reality.

1) a slew of experts have found that the fire may have been accidental and may have beeen arson. It is indeterminant which. It is impossible to determine the origin of the fire.

2) There have also been found a slew of problems with the official Beyler report, which is very critical of the state's case for arson presented at trial.

3) The full reply to the Beyler report from two state agencies has yet to be presented but, the one from the Texas Fire Marshall's office will have to fully rebut Beyler, because the agency has already publically stated that they will be standing by their expert, Vasquez. Vasquez was ripped apart by Beyler. So far, the Corsicana Fire department reply has been limited and critical of Beyler. With the extended time, they may have the opportunity to expand their review of the evidence. The CFD had stated they were given too little tine and resources to put together a thorough report. They, now, have time.

4) When (3) is finally submitted I am sure Beyler and other's will have a reply/rebuttal.

5) If it turnes out that the fire forensics are neutral, the trial transcrips and police witness statements weigh heavily toward Willingmah's guilt.

6) A previoulsy unrecorded eyewitness has come forward. If credible, he appears to cement a guilty finding. To my knowlegde only one reporter, a TV one, has reported on this. Had this been a newly discovered witness, supporting innocence, it would have been streaming across the wires, worlwide, within seconds.

Posted by: Dudley Sharp | Dec 15, 2009 6:59:43 AM

Doug:

My apology. You obvioulsy did point out the 139 innocents as a part of the irresposbible presentation of the Times.

Dudley

Posted by: Dudley Sharp | Dec 15, 2009 7:32:35 AM

mpb:

It is "thou shalt not murder". That is made clear by the number of crimes that God stated man shall be put to death for, as well as extensive biblical and theological writings on the topic, of which, these are some:

"Death Penalty Support: Modern Catholic Scholars"

http://prodpinnc.blogspot.com/2009/07/death-penalty-support-modern-catholic.html

Posted by: Dudley Sharp | Dec 15, 2009 7:35:48 AM

mpb --

The problem with a wooden understanding of "Thou Shalt Not Kill" is that virtully no one actually believes it, including, I'll wager, you.

Someone comes lunging at your throat with a butcher knife. You have a revolver in your hand. What are you going to do? Let him slice your head off, or fire the gun at him?

To ask the question is to answer it.

Same deal, except this time he's not lunging at your throat, but that of your ten year-old daughter. What are you going to do?

Even Barack Obama gets it. In his Nobel acceptance speech last week, he talked about just war, in which civilized people have no choice but to employ deadly force on a grand scale to resist evil.

WWII was such a war, as virtually every serious person agrees. We killed by the thousands, including thousands of civilians, in Germany, across Europe and in Japan. That was the way the war had to be fought. The alternative was the second coming of the Dark Ages.

So, mpb, the real question is not WHETHER killing is acceptable; it's WHEN it's acceptable. As Dudley Sharp has noted, nearly 20 recent and independent studies show that the death penalty saves innocent life. That by itself overwhelmingly justifies keeping it as an option for the jury in aggravated cases.

And this is without reference to the principal justification for the DP, to wit, that in some cases, such as for the stone-cold triggermen in the Tison case, there is simply nothing else that remotely qualifies as justice.

If you want to know what REAL barbarism is like, read Tison and see if it doesn't make you want to throw up. You won't have to read far, I assure you.

Posted by: Bill Otis | Dec 15, 2009 10:19:40 AM

peter --

1. Just as the world did not end when we had the moratorium (as you correctly point out), it hasn't ended in the 30 years or so since the moratorium came to a close. What has ended, however, is the sky-high murder rate, which is now, with the resumption of executions, at a 40 year low.

2. Mince pie is a bit fattening for me. The added weight tends to slow me down while I'm chasing those cute little kittens to put them in the sack to drop down the well.

As you can see, my barbarism is in full swing for the holidays, as ever. Which doesn't mean that you shouldn't have a Merry one. Hope you will!

Posted by: Bill Otis | Dec 15, 2009 10:30:18 AM

Peter, you didn't back up your assertion that the law in any state makes mere presence at the scene of a murder a capital offense. The Texas Law of Parties does not. Presence at the scene alone is not enough to make a person a party under that law.

So at this point it would appear that your assertion that "in some states, mere presence at the scene of a murder is sufficient for execution" was a bald-faced lie.

If it was not, let's have the citation.

Posted by: Kent Scheidegger | Dec 15, 2009 4:41:23 PM

Kent - I made clear that Texas, with its abuse via the Law of Parties, is able and in fact does, send persons to death row on the basis of mere presence. The law is applied without the finesse required to distinguish innocent parties. In other words, there is an assumption of guilt which gives rise to bias against the accused. The Fifth Circuit compounds the bias by often invoking its own support of the Law of Parties (even when not formally part of the charge) when other evidence against an accused cannot be sustained on appeal, as was seen for example in the case of Gregory Wright (executed Oct.30th 2008). Also, although Gov.Perry granted clemency to Kenneth Foster (as a result of huge public concern for his case) it was not on the basis of the merits of his defense - which included mere presence. Nonetheless, that was substantially the concern of the public who believed, rightly, that the Law of Parties was being used to trap an innocent man. Kenneth's appeals continue on that basis.
I stated that "in some states, mere presence at the scene of a murder is sufficient for execution". I did not state that it was formally written into the legislation. However, that IS the consequence, for many accused, of the legislation. The Law of Parties in Texas is a particularly bad law and exceptional in its scope.

Posted by: peter | Dec 15, 2009 5:14:02 PM

Well we can restate the Ten Commandments and we can yakk about how awfull bad people are. Lets not have Ten Commandments and lets not have Christians telling us how to live our lives and lets not have former prosecutors tell us how "just" they are. So, what standards do we want to live by? Thou shalt kill those that get in the way? Or kill those that are bad people because they killed or maimed or did bad things? Lets just kill those who we do not like or whom we hate, or who are muslims or criminals or bad people.

Oh, and if someone comes at me with a butcher knife I will kill him/her to protect myself. You guys are full of BS.

Posted by: mpb | Dec 15, 2009 6:47:17 PM

Ah, the old Bill Clinton defense. Make a statement that many, probably most, people would take to mean X. Then when X is definitively proven false, claim that your statement does not literally say X.

Whether an actual lie or not, it is dishonest.

Posted by: Kent Scheidegger | Dec 15, 2009 7:42:59 PM

mpb --

"Oh, and if someone comes at me with a butcher knife I will kill him/her to protect myself."

Then you agree that it's not a question of whether we may kill, but under what circumstances.

Do you think the United States and its allies should have (1) fought the Nazis in WWII, with all the massive killing that unavoidably entailed, or (2) declined to do so, allowing the Third Reich to claim the whole world?

Since you're so superior as to brand your opponents' arguments BS, I'm sure you'll have a ready and direct answer to that question.

Let's see it.

Posted by: Bill Otis | Dec 15, 2009 9:59:30 PM

Kent - I think you can take it that the readership of this blog are both literate and intelligent. The fact that you find the consequences of poor legislation uncomfortable and would prefer to deny them, is your problem.

Posted by: peter | Dec 16, 2009 4:34:33 AM

Peter:

As with many crimes and criminal statutes, some will disagree with the law or the conviction.

With the law of parties, your complaints are way too dogmatic given the scope of the lop and its actual implementation.

The most important issue is that the lop is explained in detail to the juries and that the juries make the determination of culpablity of the triggerman's accomplice.

“What do you think is going to happen when a guy goes into a convenience store to rob it and he’s armed with a gun, and your job is to help him commit that crime?” said Mary Lou Leary, executive director of the National Center for Victims of Crime. “It’s a very high-risk activity.”(3)

Put another way, don’t commit an armed robbery when you know understood threat is "if you don't give me what I want, I will murder you." All parties to an armed robbery are very aware of that reality, as are we all.

Don’t be part of an armed robbery, at all. You might end up on death row.

There are many ‘non-triggerman” murders that most, if not all, of us, would find equally as culpable, both legally and morally, as the triggerman, such as the person who hires a hit man to murder someone or a case such as Osama Bin Laden’s, where he was thousands of miles away from the murder scenes, all over the world.

Texas Law of Parties:

A person is criminally responsible for an offense committed bythe conduct of another if acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense or if, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.

PENAL CODE, CHAPTER 7. CRIMINAL RESPONSIBILITY FOR CONDUCT OF ANOTHER, SUBCHAPTER A. COMPLICITY
http://tlo2.tlc.state.tx.us/statutes/docs/PE/content/htm/pe.002.00.000007.00.htm

Posted by: Dudley Sharp | Dec 16, 2009 6:55:26 AM

peter --

Whether the Texas law is "poor legislation" is a subjective assessment. Whether it violates some provision of the Constitution is less so. To my knowledge, no court has invalidated it. So I gather the legal argument isn't getting too far.

Nor do I believe it's Kent's problem that this "poor legislation" has undesirable consequences (assuming arguendo that it is in fact poor, and its consequences undesirable). The "problem" is for the thugs who knowingly associate themselves in a holdup and then don't like how it turns out. And that is exactly where the problem should be.

A society with a decent regard for the right of its citizens to live in peace and safety has no need to tremble before the "I'm-a-victim" whining of its stick-up artists.

Posted by: Bill Otis | Dec 16, 2009 10:09:19 AM

Dudley - as always, you choose to miss the point. It is easy to think up a scenario where an accomplice to a crime in which a murder occurred might also have shared the intent to kill. But the proof of intent to kill is a crucial part of sentencing determination. It is far less easy both for an accused to prove no intent, or indeed for the prosecution to prove intent. The Law of Parties is used as an aid to prosecutors to obtain conviction in the absence of evidence of intent. Furthermore, it is also used as a cover-all in cases where there is no clear evidence of which participant actually caused death. While superficially that may seem an attractive law so that the guilty do not escape punishment, in fact in practice, it is liable to ensnare the innocent. You end up with the ridiculous situation that persons who have been found clearly guilty of actual murder receiving, in many cases, a lesser sentence than someone who at most may have been an unwitting accomplice (without intent) or worse, may have been an innocent bystander. The system is therefore a lottery depending on the determination of an individual prosecutor to press or not for an inclusive death penalty charge. The degree of randomness and unfairness that results is an enduring stain on any notion of Justice in the application of the death penalty, and certainly results in wrongful executions.

Posted by: peter | Dec 16, 2009 10:20:37 AM

Bill - this is too complex a topic to discuss here at a depth that it deserves. I refer you therefore to the substantive discussion at http://www.freekenneth.com/lawofparties.htm (click on my name)

Posted by: peter | Dec 16, 2009 10:44:24 AM

No Peter:

I got the main point exactly. To repeat:

The most important issue is that the law of parties is explained in detail to the juries and that the juries make the determination of culpablity of the triggerman's accomplice.

Posted by: Dudley Sharp | Dec 20, 2009 6:14:50 PM

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